Shourd v. S&H Sales

Filed 12/1/05 Shourd v. S&H Sales CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

ANDREW SHOURD et al., Plaintiffs and Respondents, v. S&H SALES CO., INC. et al., Defendants and Appellants.

B179032 (Los Angeles County Super. Ct. No. BC302148)

APPEAL from an order of the Superior Court of Los Angeles County,

Rolf M. Treu, Judge. Affirmed.

Mark Brifman, attorney for S&H Sales Co., Inc., Defendant and Appellant.

Gary Rand & Suzanne E. Rand-Lewis and Suzanne E. Rand-Lewis, attorneys for Plaintiffs and Respondents.

_________________________

INTRODUCTION

Defendant S&H Sales Co., Inc., appeals from the post-judgment order of the trial court awarding plaintiffs, Andrew Shourd, Matthew Orth, and Richard Nuttal, attorney fees upon plaintiffs’ successful anti-SLAPP[1] special motion to strike defendant’s cross-complaint pursuant to Code of Civil Procedure section 425.16.[2] We conclude that defendant has failed to demonstrate that the fee award was an abuse of discretion. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In the course of plaintiffs’ wrongful termination action against defendant, defendant filed an admittedly inappropriate and meritless cross-complaint. Plaintiffs filed a motion to strike the cross-complaint pursuant to section 425.16.

To respond to the special motion to strike, defendant requested an extension of time. Defendant then moved ex parte to continue the hearing date. Despite all of the attorney time consumed in responding to these maneuvers, in the end, defendant never filed an opposition to the motion to strike, opting instead to retain new attorneys and dismiss its cross-complaint.

Thereafter, the trial court dismissed the cross-complaint, granted the anti-SLAPP motion, and found that plaintiffs were the prevailing party on the anti-SLAPP motion for purposes of section 425.16.

Plaintiffs filed their motion for fees seeking $32,083.50 as reasonable attorney fees and costs pursuant to the anti-SLAPP statute’s mandatory fee provision (§ 425.16, subd. (c)). The fee motion was supported by the declaration of plaintiffs’ counsel, Suzanne E. Rand-Lewis. Attached to the declaration was the verified memorandum of costs on the Judicial Council standard form along with time slips summarizing the attorney fees incurred in defending the cross-complaint, broken down by services rendered, months such services were rendered, personnel working on the services, and rate and value of each service. Because the cross-complaint named all three plaintiffs, counsel was required to evaluate and analyze the effect of the cross-complaint on each individual client, effectively multiplying the case by three. Plaintiffs incurred more than 120 hours of attorney time.

Defendant opposed the fee request arguing that the trial court should deny it in its entirety. Defendant argued that the vast majority of time plaintiffs spent was “self‑inflicted . . . due to their own attorney’s recalcitrance.” Defendant posed objections to Ms. Rand-Lewis’s declaration, and in particular for purposes of this appeal, to exhibit B to the declaration, on the ground that it was unauthenticated and hearsay.

The matter was referred to a referee. After taking evidence, the referee overruled defendant’s hearsay and authentication objections with respect to exhibit B. The referee noted, there being no dispute that plaintiffs were entitled to attorney fees and costs under section 425.16, subdivision (c), that the dispute centered on the reasonableness of the fees. The referee stated, “At first blush the fees requested seem high, however, an examination of the declaration of Ms. Rand-Lewis, the legal points and authorities and argument very credibly support [plaintiffs’] position.” (Italics added.) By contrast, defendant’s counsel’s “declaration, points and authorities and argument provide much by the way of personal attacks on the competency and credibility of Ms. Rand-Lewis but with little or no foundation for these assertions.” The referee found that defendant’s tactics caused plaintiffs to incur additional attorney fees. The referee found that the three plaintiffs “necessarily incurred $32,083.50 in fees and costs pursuant to Section 425.16(c) of the Code of Civil Procedure.”

Returning to the trial court, defendant objected to the referee’s report and requested a hearing. Thereafter, the court entered its order adopting the referee’s decision as the court’s order and awarding plaintiffs’ motion for attorney fees in the amount of $32,083.50. In so doing, the court overruled defendant’s objections to the evidence and the referee’s report, specifically noting that “[t]he Court has read and considered Exh. A [decision of the referee] and the 8-27-04 objection thereto filed. CCP 643.” Defendant’s appeal ensued.

CONTENTIONS

Defendant contends there is no admissible evidence to support the judgment for attorney fees.

DISCUSSION

1. The fee award was not an abuse of discretion.

“The special motion to strike--or so-called anti-SLAPP motion--is subject to statutory fee shifting as follows. ‘In any action subject to [the special motion to strike], a prevailing defendant . . . shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to . . . [s]ection 128.5.’ [Citation.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131, citing § 425.16, subd. (c).) Such fees are mandatory. (Ibid.)

“The purpose of section 425.16 is clearly to give relief, including financial relief in the form of attorney’s fees and costs, to persons who have been victimized by meritless, retaliatory SLAPP lawsuits because of their ‘participation in matters of public significance’ [citation].” (Liu v. Moore (1999) 69 Cal.App.4th 745, 750.) “A reading of section 425.16 clearly shows that the Legislature envisioned actual relief for SLAPP defendants when it drafted that statute.” (Id. at p 751, original italics.)

Section 425, subdivision (c) “authorizes the court to make an award of reasonable attorney fees to a prevailing defendant, which will adequately compensate the defendant for the expense of responding to a baseless lawsuit. [Citation.]” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.) Whether the costs appear to be reasonable is a factual question for the trial court. (Jones v. Dumrichob (1998) 63 Cal.App.4th 1258, 1266.) We review a fee award under the anti-SLAPP statute for abuse of discretion. (Tuchsher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1248.) “ ‘The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason.’ [Citation.]” (Dove Audio, Inc., supra, at p. 785.)

Defendant contends that the evidence plaintiffs presented in support of their fee motion was neither competent nor admissible. Specifically, defendant argues that the documents attached to Ms. Rand-Lewis’s declaration as exhibit B are hearsay and not authenticated. Wrong.

Exhibit B consists of the standard-form memorandum of costs summary on Judicial Council form with the obligatory verification by counsel that “[t]o the best of his or her knowledge the items of cost are correct and were necessarily incurred in the case.” (Cal. Rules of Court, rule 870(a)(1).) That was sufficient. “[T]here is no legal requirement that [billing] statements be offered in evidence. An attorney’s testimony as to the number of hours worked is sufficient evidence to support an award of attorney fees, even in the absence of detailed time records. [Citation.]” (Steiny & Co. v. California Electric Supply Co. (2000) 79 Cal.App.4th 285, 293.) All that is required is an attorney declaration that “spell[s] out in detail the date, nature, and value of the services rendered. [Citation.]” (Adam v. DeCharon (1995) 31 Cal.App.4th 708, 715.)

Notwithstanding the billing statements are not necessary, Ms. Rand-Lewis attached to the memorandum of costs (1) invoices for service of documents, (2) receipts, (3) “file notes,” and (4) a “file notes summary” specifying the date and time spent on itemized legal activities relating to the anti-SLAPP motion to strike. Ms. Rand-Lewis’s authenticating declaration, signed under penalty of perjury, explains the “file notes” as follows: “Because the Cross-Complaint was so convoluted and beyond any legal authority, it took a great deal of time to research it and analyze it. I created time slips concerning the time spent and fees incurred concerning the Cross-Complaint and anti-SLAPP Motion. Those fees are accurately represented by Exhibit ‘B’ and were originally filed in conjunction with Plaintiff’s [sic] Memorandum of Costs. [¶] 2. The documents attached hereto as Exhibit ‘A’ and ‘B’ are true and correct copies of documents retained in my file, filed with the Court and exchanged between the parties.” (Italics added.) This declaration more than adequately authenticated exhibit B as a concurrent record of time her firm spent on the anti-SLAPP matter.

Defendant’s hearsay argument is groundless. Defendant devotes four pages of its opening brief in arguing that “[i]t is entirely unknown what the documents attached to Ex. B are,” these documents “do not appear to be compilations of business records,” and “We know nothing about Ex. B, or the ‘File Notes’ contained within it. We don’t know who prepared them, when they were prepared, or how they were prepared.” Defendant did not read the above-recited portion of Ms. Rand-Lewis’s declaration. As noted, Ms. Rand-Lewis provided all of the necessary authenticating information in the first paragraph of her declaration. Furthermore, courts hearing attorney fee motions rely on “evidence in the form of declarations only, not live testimony, and detailed billing records are not required to support an award. [Citation.]” (Padilla v. McClellan (2001) 93 Cal.App.4th 1100, 1106-1107, italics added.) As Ms. Rand-Lewis’s authenticating declaration set forth the foundational prerequisite for the contents of the time slips, they were not inadmissible hearsay, but business records admissible in this context. (Evid. Code, § 1271.) Thus, although they were not necessary, the “file notes” attached to plaintiffs’ motion as exhibit B were authenticated and admissible. The trial court properly overruled defendant’s objections to them.

Given these documents were properly admitted, defendant’s next contention is equally meritless that without the exhibit B documents, there was no basis for the fees the court awarded.

Defendant also contends that even were the exhibit B documents to be considered, they do not support the fee award. Reviewing the record, it shows that the same challenges to the very same line items raised in this appeal were raised and rejected not only by the referee but also by the trial court. There was no error.

Where the items in the memorandum of costs “appear to be proper charges, the verified memorandum of costs is prima facie evidence of their propriety . . . .” (Jones v. Dumrichob, supra, 63 Cal.App.4th at p. 1266.) “ ‘ “The matter of reasonableness of attorney’s fees is within the sound discretion of the trial judge. [Citations.] Determining the weight and credibility of the evidence, especially credibility of witnesses, is the special province of the trier of fact. [Citation.]” [Citation.] “In determining what constitutes a reasonable compensation for an attorney who has rendered services in connection with a legal proceeding, the court may and should consider ‘the nature of the litigation, its difficulty, the amount involved, the skill required and the skill employed in handling the litigation, the attention given, the success of the attorney’s efforts, his learning, his age, and his experience in the particular type of work demanded . . . ; the intricacies and importance of the litigation, the labor and necessity for skilled legal training and ability in trying the cause, and the time consumed.’ [Citations.]” [Citations.]’ [Citation.]” (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 659, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) The trial court did not abuse its discretion in awarding attorney fees and substantial evidence supports the award.

Finally, plaintiffs seek attorney fees and costs incurred in connection with this appeal. “ ‘A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.’ [Citation.] Since section 425.16, subdivision (c) provides for an award of attorney fees and costs to a prevailing defendant on a special motion to strike, and does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent, those fees are recoverable. [Citation.]” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 785.)

DISPOSITION

The order awarding attorney fees to plaintiffs is affirmed. Plaintiffs shall recover their costs and attorney fees on appeal, the amount of which shall be determined by the trial court.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P.J.

KITCHING, J.

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[1] SLAPP is an acronym for “strategic lawsuit against public participation.” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)

[2] All further statutory references are to the Code of Civil Procedure.